Some good news for open government came out of Lansing this last week, on Nov. 12.

Extract from Ann Arbor Downtown Development Authority records of attendance at committee meetings. Scanned by The Chronicle.

A piece of legislation that would “modernize” Michigan’s Freedom of Information Act moved out of the House Oversight Committee.

Progress on that legislation will be interesting to track as the bill possibly makes its way into state law. [.pdf of HB 4001]

For now, I’d like to focus on just one clause of the proposed legislation. And I’d like to connect that to some otherwise unrelated dots, one of which is an upcoming Ann Arbor city council vote.

That vote – on an appointment to the board of the Ann Arbor Downtown Development Authority – will take place either at the council’s next meeting on Nov. 18 or possibly at its following meeting on Dec. 2.

I’ll work backwards from the upcoming council decision.

Every year the post-election council votes, soon after being seated, to confirm membership of its own internal committees – and to make council appointments to other boards and commissions. That includes an appointment to the DDA board. Under city ordinance and state statute, the city administrator or the mayor can serve on the Ann Arbor DDA board. [1] For the period of John Hieftje’s long tenure as mayor, it’s been Hieftje, not the city administrator, who has filled that slot on the DDA board.

Some councilmembers might be looking for a objective, performance-based (i.e., non-political) reason to appoint city administrator Steve Powers to the DDA board, instead of Hieftje. Poor attendance by Hieftje at committee meetings over the last two years would be a possible candidate for that reason.

That’s because, according to the DDA’s bylaws, continuing membership on the DDA board is contingent on active board service. According to the bylaws, an objective measure of active service on the board includes 70% attendance at one of the board’s two standing committee meetings. [2] [.pdf of DDA bylaws as revised 2010]

And attendance records of those committee meetings for the past two fiscal years (from July 2011 to the present) do not reflect at least 70% attendance by Hieftje. In fact they don’t appear to indicate attendance by Hieftje at any of the committee meetings for that period. [3]

The connection to Michigan’s FOIA is the attendance records. The DDA produced those attendance records to The Chronicle in response to a request made under Michigan’s existing FOIA. Evaluating those attendance records was somewhat challenging, because they were kept as handwritten notes in less-than-model penmanship. [4]

The DDA responded to our request under the FOIA by making paper copies of the paper originals. That meets the minimum requirement of the state statute to produce copies of records. However, it does not meet the reasonable expectation for operation of a modern office – one that is equipped with a multi-purpose business machine that will scan to a .pdf file just as easily as it will make a paper copy.

The advantages of digital copies in the form of a .pdf file – compared to paper copies – are, I think, self-evident. So in responding to requests made under the FOIA, the DDA should be using the scanning functionality of its office machine and providing digital copies to requestors. The Chronicle should not need to use its time and resources to scan those documents as an extra, unnecessary step in the process. [.pdf of DDA committee attendance records, scanned by The Chronicle]

But Michigan’s current FOIA does not provide an explicit way to force a public body to use digital technology to copy records when responding to requests made under the FOIA.

And that’s the connection to the final dot. The “modernized” version of Michigan’s FOIA that moved out of committee last week includes this clause: “The requestor may stipulate that the requested records be provided on digital media, electronically mailed, or otherwise electronically provided to him or her in lieu of paper copies.”

According to a Sarah Schillio, legislative director for Rep. Jeff Irwin (D-53) of Ann Arbor, it was Irwin’s work with other representatives that resulted in the added language allowing requestors to stipulate digital copies.

To Jeff and the other legislators who helped insert that language: Thank you – I hope that clause stays in a version that is enacted into law.

Notes
[1] Questions have been raised about this issue, but based on a 8-page analysis by the Ann Arbor city attorney’s office, either the mayor or the city administrator can serve on the Ann Arbor DDA board.
[2] We can leave aside the question of whether this makes sense to include in the organization’s bylaws. But it’s worth noting that the DDA board itself does not have the power to remove one of its own members. By state statute, removal of a DDA board member (for cause) is a power reserved for the city council – after the member to be removed has been given an opportunity to be heard. It’s a decision that can be appealed to the circuit court.
[3] Of the DDA current board membership, an initial assessment of the attendance records by The Chronicle seems to indicate that only Hieftje and probably Russ Collins fall short of the 70% attendance threshold. The handwriting in the attendance records was in some cases challenging to decipher with some names running off the edge of the photocopied page.
[4] The most recent committee notes, however – included in the board’s information packet for its Nov. 6 meeting and recorded after The Chronicle’s request for attendance records – were typed out. So in the future, it should be easier to track compliance of DDA board members with the attendance requirement in the bylaws. [.pdf of October 2013 committee meeting minutes]

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15 Comments

If we had a government that was truly of, by, and for the people, even the FOIA request would not be needed. FOIA is a tool we use to pry public information out of a recalcitrant or despotic government. It shouldn’t be needed in a democratic society.

Dave, thanks for a thoughtful discussion of this one small area of concern regarding FOIA disclosures. If the State legislature passes a FOIA reform bill, that should trigger a review of FOIA policies at each local governmental entity.

The Freedom of Information Act was adopted to express the State’s preference for making public records easily available to citizens. The Act creates a presumption favoring disclosure. Unfortunately, too many governmental entities have used it as a means of establishing obstacles.

This legislation coupled with local review of FOIA policies can be the opportunity to revise local FOIA policies to favor disclosure. Section 18.2 of our City Charter expresses the clear intention of the voters to make public records readily available for residents. Currently, Council is considering a resolution to study a Council ethics policy which seems to imply a desire to keep some records from the public. In light of the FOIA and City Charter provision, I cannot explain why we wish to encourage secretiveness.

I know the Chronicle will continue to shine a light on these important matters. That is just one reason why every reader should support for your fine publication with regular and generous contributions.

As far as I can tell, this discussion hinges on participation at committee meetings. The DDA does keep digital records (the minutes) of attendance at board meetings. I just checked the packet and the attendance was duly noted.

Application of Open Meetings Act principles (which specify minute-taking and thus lead to such records being kept) vary wildly among public bodies as far as committees go. Some have taken the dictates of OMA for meetings at which a quorum of elected or appointed officials creates a requirement as a ceiling, not a threshold, and have actually constructed their committees in order to evade public access. The AAATA restructured its committees to have sub-quorum numbers, and thus two of their three committees at which most business is actually conducted are closed to public view. This might be fine if the minutes and full documentation were then made available in a final Board packet, but recently the documents that the (open) Planning and Development Committee meetings generate have not been included in the Board packet. This includes staff memos and progress reports, which do exist in documentary form and are distributed at the meeting (but not to audience members). I don’t know whether Board members who are not present at these meetings receive such documents privately, or whether they are simply not informed of this business, in which case they are being asked to approve decisions without the full knowledge that a Board member should have.

One could, of course, do a FOIA to obtain these documents. But the AAATA has also created an unwieldy FOIA form which makes any such request very difficult.Certainly this violates the spirit if not the law of the OMA and FOIA acts.

With regard to the DDA: It is my impression that minutes are not kept of committee meetings, at least not formal ones. I haven’t looked into whether those committees have a quorum of board members or not. I am grateful that they do let the public in to the meetings to observe, at any rate.

1. I’m on the same email distribution list as you are, and on Oct. 17, the day of the last board meeting, AAATA administrative assistant Karen Wheeler sent along an updated board packet to that distribution list – which includes the full-on PDC meeting minutes. [October 2013 board packet] That same email included an attachement with the PMER committee materials for the month. Hasn’t that been a pretty typical pattern over the last several months? (That is: initial board packet followed by a version that includes PDC material and an attachment for PMER.)

If there’s room for complaint then that possibly lies in the fact that AAATA’s new website’s document repository does not appear to be up to date to include October’s documents. And it looks to me like the PDC minutes generally are not included in the document repository version of the board packets that are there. (I’ve simply relied on the information distributed to the email list.)

2. Also, this struck me as historically interesting: “The AAATA restructured its committees to have sub-quorum numbers, …” I don’t think that’s actually the case. I think the standing committees have always had sub-quorum numbers – at least over the last five years. In any case it would be useful if you could identify the point in history when that restructuring took place (from an number greater than or equal to quorum to a sub-quorum number).

3. Finally, the AAATA’s FOIA request form is one page long and does not, in my view, warrant the description “unwieldy.” [FOIA request form] There’s no statutory requirement that someone use the public body’s form, but the AAATA’s form is pretty basic and straightforward. It seems to be designed to provide clarity and a certain amount of educational information, especially if the request is being filed by someone who has never filed a request before. From that form, for example, a naive requestor might learn they have the right to physically inspect records as opposed to having copies made. I think the one weird aspect of the form is that it invites the requestor to agree that the AAATA “will respond to my request by _________ day of ______________ month, ________________ year.” That seems like an ill-advised attempt to apprise a requestor of the fact that they can, if they want, voluntarily extend the statutory deadline for response.

As forms go, it’s not too bad, and even if you had to use it, I don’t think it’s reasonable to call the filing of a request using that form “very difficult.”

Do your homework Dave. Mayor Hieftje has not been appointed to any of the DDA Committees. In the past, when Neal Berlin, City Administrator, attended DDA Board meetings, in lieu of Mayor Ingrid Sheldon, he was not appointed to any of the committees either.

Re (5) The PDC minutes do not include the documents. I am referring to staff memos, etc. that are discussed at the PDC meeting. They do distribute minutes from the meeting. At one time, some of the documents (staff memos, etc.) were also included in the Board packets.

There was a reorganization of the AATA in July 2008, when the subquorum committees were formed. I’m sending you (DA) the document. Under the leadership of David Nacht as Chair, there was a “strategic working session” in June 2008 (no minutes exist as far as I have been able to determine). This resulted in a newly stated mission and structure of the AATA Board.

Re: [6] “Mayor Hieftje has not been appointed to any of the DDA committees.”

That’s not true, and beside the point as well. First it’s not true. From the minutes of the last annual meeting:

Ms. Smith reviewed the members and chairs of the Operations Committee. Mr. Hewitt, Mr. Splitt & Mr. Orr will serve as committee chairs, the remainder of the DDA board members will serve on the committee.

Ms. Smith reviewed the members and chairs of the Partnerships/ Economic Development Committee. Ms. Smith and Ms. Lowenstein will serve as committee chairs, the remainder of the DDA board members will serve on the committee.

No exception was carved out for Hieftje out of the “remainder of DDA board members.”

Second, the bylaws do not state that if you’re appointed to a committee, then you have to attend at least 70% of the meetings. Whether he was appointed to a committee or not, the bylaws require service on a committee with 70% attendance:

As the work of the DDA is done primarily through Committee, it is expected that each Board member will actively serve on at least one committee, and will attend a minimum of 70% of the committee’s meetings per year as a condition of remaining on the DDA Board.

So even if it were true that Hieftje had never been appointed to a committee, it would not defend against the fact that he hasn’t fulfilled the requirement of the bylaws.

Dave, the link you provided to the AAATA FOIA request form leads to an agenda packet instead. Could you please repost the form? I’d like to see if it has been made more accessible. The version I have from January is a lengthy WORD document that includes all the internal tracking documents, etc. I was invited to fill in the form, scan it, and send it as an image. I consider this an ungainly way to perform a task that most people accomplish with a simple email.

It does not have a place to request electronic copies rather than paper copies. (Most governmental entities do not charge for electronic copies unless staff time is required to compile information.) Also, though PDF forms may now be constructed so that they may be filled in digitally, this still appears to require filling in manually. It does not direct the user to a FOIA officer or explain how the form is to be submitted.

As long as the topic of sub-quorum committees has been raised, I think it’s worth noting that a sub-quorum committee might still fall under the requirements of Michigan’s Open Meetings Act. That depends on the function of that committee.

Note that the OMA defines a public body to include subcommittees:

Any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.

If the subcommittee itself has responsibility for performing a “governmental … function” like placing an item on the agenda of the full public body for action, then that subcommittee could itself be considered to be a public body under the OMA, and its subquorum status would not excuse it from the requirements of the OMA.

This reasoning isn’t mine – as I’m simply parroting a 15-year old Michigan attorney general opinion here, involving the standing committee of a county board of commissioners:

It is my opinion, therefore, that a meeting of a standing committee of a county board of commissioners, composed of less than a quorum of the full board, is subject to the Open Meetings Act when the committee is effectively authorized to determine whether items of county business will or will not be referred for action by the full board. [AG Opinion #7000, Frank Kelly 1998]

It could be that there’s some more recent legal authority on this question – a COA opinion that explicitly rejects that AG opinion, for example. It would be nice if someone with access to Westlaw or similar could just look that up to see if the AG opinion is still good law.

If there’s not a more recent authority, then I’m not sure that the AAATA’s committees – sub-quorum though they might be – would be excused from fulfilling the requirements of the OMA. From a practical point of view at least, the AAATA subcommittees do seem to determine whether an item will come before the full board for consideration, making those committees parallel with the board of commissioners subcommittee in the AG opinion. But I have not reviewed the AAATA bylaws for its rules on how items can make it onto the full board’s meeting agenda. It could be that the placement of an item on the agenda is not the function of committee, but rather the staff, and it’s just the committee’s recommendation on whether the full board should approve it that’s under the committee’s control. Still, that seems like a reasonable legal foundation for a suggestion to the AAATA to open up its PMER committee meetings to attendance by the public (like the PDC meetings) – because that would be way less time consuming than wrangling about whether it’s legally required.

Similarly, the Ann Arbor city council’s “council administration” committee has an agenda-setting function, and might need to conform to OMA requirements, even though it’s a subquorum committee of the council. In the past I recall meetings of that council committee being noticed to the public, although the online Legistar system isn’t showing me anything for 2013. But city committees, by council resolution dating from the early 1990s, are supposed to conform to OMA requirements as best they can anyway, whether the OMA requires it of them or not.

I think that’s what I intended to convey, but clearly not successfully.

I think it is this sentence that you’re identifying as problematic, with emphasis added this time around: “Second, the bylaws do not state that if you’re appointed to a committee, then you have to attend at least 70% of the meetings.” I meant to be denying the implied if-then interpretation that Leah Gunn was giving the bylaws. Put another way, I don’t think the bylaws make 70% attendance conditional on being appointed to a committee. There’s not a rule that says: If you’re appointed to a committee, then you have to attend 70% of that committee’s meetings. The bylaw is stronger: It says you’re expected to serve on a committee and that service is measured by the 70% standard. That is, I don’t think it’s an adequate defense for not serving actively on a committee to say: But I was never appointed to a committee.

Did I screw that up? Or is there some other, different thing I’ve screwed up?

MICATS (Michigan Coalition Against Tar Sands) is reporting that two of its protesters have been arrested for locking their necks with bicycle U-locks to pipeline construction trucks being used for the Enbridge Line 6B pipeline expansion. [Source]

In a roundup of the lineup for the Aug. 5, 2014 primary elections, we overstated by one year Ward 5 councilmember Chuck Warpehoski’s length of service as a council representative on the city’s environmental commission. He served in that capacity during his first year on the council. We note the error here and have corrected the original article.